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Probate Administration in Los Angeles County

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Understanding Probate Administration in Los Angeles County

The first step in the process is to file a petition for probate of a will if you have a will or to file a petition for administration of an estate without a will. You will need to obtain a certified copy of the death certificate and determine the heirs of the decedent. You will need to identify each and every potential heir such as the spouse, parents and siblings and provide their mailing addresses. Once you have this basic information you will need to identify the approximate value of the estate including any and all real estate, personal property, retirement plans, savings accounts, checking accounts etc… You will also need to identify and determine the amount of all debts such as mortgage amounts, car loans, credit card debts, etc… You will need to inform the court to the best of your knowledge the gross value of the estate, the amount of debts and an overall net value. Sometimes this can be difficult if you are unable to locate all of the required information and you may need the assistance of an attorney to help you determine what steps you should take. Once you have all of the required information you will file a Petition for Probate.

The second step is to publish notice in a newspaper of general circulation and to send notice to all known creditors and heirs/beneficiaries. If any of these beneficiaries resided in another country additional steps must be taken. (See Beneficiaries Residing in Another Country Blog) Once these notices have been provided you are ready to request that the court appoint you as the executor or personal representative and post any bond required by the court. If the court appoints you then you will be in a position to begin the administration process.

The third step in the administration process which requires you to marshal all assets of the estate and to pay all creditors who have timely filed a legitimate Creditors Claim. (See Creditors Claim Blog) If there is a will it is likely that certain specified assets will be distributed to named beneficiaries and it will be your responsibility to ensure that those specific bequests are provided as specified in the will. If there isn’t a will then you will likely be valuing the estate for distribution to the identified beneficiaries in an equal amount. Accordingly, you may need to sell real property and/or personal property and provide an equal monetary distribution to each of the heirs if an agreement on an in kind distribution cannot be obtained.

The final step in the administration process is to file a petition with the probate court requesting that the court approve your administration of the estate and authorize the requested distribution amounts that you have identified as the proper amounts. At this time, you will also be requesting that the court authorize you to pay yourself and your attorney the statutory fee amount and any extraordinary fees. (See Statutory Fee & Extraordinary Fees Blog).

Have Questions On Probate Administration in Los Angeles County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Beneficiaries Residing in Another Country

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Beneficiaries Residing in Another Country

When you are the administrator of an estate in California you are required to provide notice of administration to all heirs and/or relatives of the decedent regardless of where they reside. If any of these persons who are entitled to formal notice of the petition for probate lives in another country, there are additional provisions of the probate code that apply and additional steps that you must take in order to provide the legally required notice of the petition to administer the estate. The court will not appoint you as an executor and/or administrator unless proper legal notice is provided as set forth below.

The following are the Probate Code Sections which apply to general notice, manner of giving notice and notice when a person required to be notified is a resident of a foreign country.

Notice of Hearing - Cal Prob Code § 1206 Notice to known heirs or devisees

(a) Subject to subdivision (b), where notice is required to be given to known heirs or known devisees, notice shall be given to the following persons:

(1) If the estate is an intestate estate, to the heirs named in the petition for letters of administration and to any additional heirs who become known to the person giving the notice prior to the giving of the notice.

(2) If the estate is a testate estate, to the devisees named in the petition for probate of the will and to any additional devisees who become known to the person giving the notice prior to the giving of the notice.

(b) Notice need not be given to a person under subdivision (a) if the person’s interest has been satisfied pursuant to court order or as evidenced by the person’s written receipt.

(See Also)

Manner of Giving Notice of Hearing - Cal Prob Code § 1220 General manner of delivering notice of hearing

(a) If notice of hearing is required to be given as provided in this section:

(1) At least 15 days before the time set for the hearing, the petitioner or the person filing the report, account, or other paper shall cause notice of the time and place of the hearing to be delivered pursuant to Section 1215 to the persons required to be given notice.

(2) Unless the statute requiring notice specifies the persons to be given notice, notice shall be delivered pursuant to Section 1215 to all of the following:

(A) The personal representative.

(B) All persons who have requested special notice in the estate proceeding pursuant to Section 1250.

(3) Subject to Section 1212, the notice shall be delivered pursuant to Section 1215 to the person required to be given notice at the person’s place of business, place of residence, or electronic address.

(b) Subject to subdivision (c), this section does not excuse compliance with the requirements for notice to a person who has requested special notice pursuant to Chapter 6 (commencing with Section 1250).

(c) The court for good cause may dispense with the notice otherwise required to be given to a person as provided in this section.

(See Also)

Beneficiaries Residing in Another Country Cal Prob Code § 8113 Notice involving foreign citizen

If a citizen of a foreign country dies without leaving a will or leaves a will without naming an executor, or if it appears that property will pass to a citizen of a foreign country, notice shall be given to a recognized diplomatic or consular official of the foreign country maintaining an office in the United States.

(See Also)

Have Questions On Beneficiaries Residing in Another Country?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Trust Litigation Settlement Agreement

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Trust Litigation Settlement Agreement

A Trust Litigation Settlement Agreement is typically entered into between the Trustee and a beneficiary of the Trust or third-party creditor. The focus of this article is a Settlement Agreement between the Trustee and a beneficiary of the Trust. A Trust Litigation Settlement Agreement can be a vital tool in resolving undisputed issues such as any alleged breach of fiduciary duty on the part of the Trustee or the distributive share of the beneficiary. A Trust Litigation Settlement Agreement will eliminate some or all of the issues which will need to be decided through a trial and will result in less time and expense to both parties. Only matters which cannot be agreed upon need to be set for trial and decided by the Judge. Our aim as your attorney will be to resolve the uncontested issues to save you time and money and focus our time and your money on the issues which are in dispute. Any issues remaining will be brought before either the Los Angeles or Orange County Superior Courts under Probate Code Section 11700:

a) The superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.

(b) The superior court having jurisdiction over the trust pursuant to this part has concurrent jurisdiction of the following:

(1) Actions and proceedings to determine the existence of trusts.

(2) Actions and proceedings by or against creditors or debtors of trusts.

(3) Other actions and proceedings involving trustees and third persons.

Cal Prob Code § 17000 https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=9.&title=&part=5.&chapter=1.&article=

A key difference between a Civil Litigation Settlement Agreement and a Trust Litigation Settlement Agreement is that the Trustee owes numerous fiduciary duties to the Trust and/or the beneficiaries of the Trust including but not limited to the duty(s) of loyalty, impartiality, to avoid conflicts of interests, to control and preserve trust property, to make trust property productive, to keep trust property separate, to enforce claims, to defend claims and to use special skills. (See Probate Code §§ 16000 — 16015 https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=9.&title=&part=4.&chapter=1.&article=1.

In addition to the enumerated fiduciary duties the Trustee must administer the Trust with reasonable care, skill and caution under the circumstances as set forth in Probate Code § 16040:

(a) The trustee shall administer the trust with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument

(b) The settlor may expand or restrict the standard provided in subdivision (a) by express provisions in the trust instrument. A trustee is not liable to a beneficiary for the trustee’s good faith reliance on these express provisions.

Cal Prob Code § 16040  https://codes.findlaw.com/ca/probate-code/prob-sect-16040.html

As such, a Trustee must negotiate any Settlement Agreement in good faith and should not seek to act partially for any reason. A Trustee will most likely be required by the terms of the Trust to obtain approval from any remaining Trust beneficiaries prior to entering into any binding Settlement Agreement. If you are a Trustee or beneficiary and would like to learn more about the negotiation procedures applicable to a Trust Litigation Settlement Agreement you should contact the Law Offices of Sam Walker. For more details or to consult with the Law Offices of Sam Walker regarding your specific situation please use our contact form to schedule a free 15-minute telephonic consultation.

Have Questions On Trust Litigation in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Probate Litigation Settlement Agreement

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Probate Litigation Settlement Agreement

A Probate Litigation Settlement Agreement is typically entered into between the Executor/Administrator and a beneficiary of the Estate or third-party creditor. https://www.courts.ca.gov/8865.htm The focus of this article is a Settlement Agreement between the Executor/Administrator and a beneficiary of the Estate. A Probate Litigation Settlement Agreement can be a vital tool in resolving undisputed issues such as any alleged breach of fiduciary duty on the part of the Executor/Administrator or the distributive share of the beneficiary. A Probate Litigation Settlement Agreement will eliminate some or all of the issues which will need to be decided through a trial and will result in less time and expense to both parties. Only matters which cannot be agreed upon need to be set for trial and decided by the Judge. Our aim as your attorney will be to resolve the uncontested issues to save you time and money and focus our time and your money on the issues which are in dispute. Any issues remaining will be brought before either the Los Angeles or Orange County Superior Courts under Probate Code Section Prob. Code, § 850 as follows:

 

(a) The following persons may file a petition requesting that the court make an order under this part:

(1) A guardian, conservator, or any claimant, in the following cases:

(A) Where the conservatee is bound by a contract in writing to convey real property or to transfer personal property, executed by the conservatee while competent or executed by the conservatee’s predecessor in interest, and the contract is one that can be specifically enforced.

(B) Where the minor has succeeded to the interest of a person bound by a contract in writing to convey real property or to transfer personal property, and the contract is one that can be specifically enforced.

(C) Where the guardian or conservator or the minor or conservatee is in possession of, or holds title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the minor or conservatee has a claim to real or personal property title to or possession of which is held by another.

(2) The personal representative or any interested person in any of the following cases:

(A) Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

(B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

(C) Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

(3) The trustee or any interested person in any of the following cases:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

(b) The petition shall set forth facts upon which the claim is based.

(Prob. Code, § 850) https://california.public.law/codes/ca_prob_code_section_850

 

A key difference between a Civil Litigation Settlement Agreement and a Probate Litigation Settlement Agreement is that the Executor/Administrator owes numerous fiduciary duties to the Estate and/or the beneficiaries of the Estate. Probate Code Section 8502 sets forth the grounds for removal of an Executor/Administrator:

A personal representative may be removed from office for any of the following causes:

(a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.

(b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.

(c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.

(d) Removal is otherwise necessary for protection of the estate or interested persons.

(e) Any other cause provided by statute.

(Prob. Code, § 8502) https://codes.findlaw.com/ca/probate-code/prob-sect-8502.html

 

As such, an Executor/Administrator must negotiate any Settlement Agreement in good faith and should not seek to act partially for any reason. An Executor/Administrator will most likely be required by the Court or remaining beneficiaries to obtain approval from any remaining beneficiaries prior to entering into any binding Settlement Agreement. If you are an Executor/Administrator or beneficiary and would like to learn more about the negotiation procedures applicable to a Probate Litigation Settlement Agreement you should contact the Law Offices of Sam Walker.

Have Questions On Probate Administration in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Opening Probate Administration

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Overview of Initial Steps for Opening Probate Administration

After the passing of a loved one family members are often in need of legal representation to open probate administration. If the Decedent executed a Will prior to their passing which has not been revoked it will need to be filed with the Superior Court in the County where the Decedent resided at his time of death. (Cal Prob Code § 8200) If you have been entrusted with safeguarding the Will you are required to file the original Will with the Superior Court within 30 days of the Decedent’s passing and mail a copy to the named executor. (Cal Prob Code § 8200) If you fail to file the Will in a timely manner you may be liable for any damages caused to the Estate. (Cal Prob Code § 8200) The Superior Court will charge you a fee of approximately $100 to file the original Will but you will be reimbursed from the Estate by the Executor/Administrator. (Cal Prob Code § 8200, Cal Gov Code § 70626 ) –

In addition to safeguarding and properly filing a Will with the Superior Court, if you are named as an Executor of the Will or are another interested party you may file a Petition for Probate and seek to be appointed as the Executor and/or Administrator of the Estate. (Cal Prob Code § 8000) You may obtain the necessary forms from the State of California Judicial Branch Website at Find Your Court Forms. In order to file a Petition for Probate and the other required forms you will need to pay the Superior Court’s required filing Fee. In Orange County and/or Los Angeles County the required fee is $435. (GC 70650(a), 70602.5 & 70602.6)

Once the Petition for Probate and all other required forms are filed the Court will hold a hearing where any interested person may object your appointment as the Executor and/or Administrator. (Cal Prob Code § 8004) The Court will determine whether you are entitled to Letters Testamentary or Letters of Administration, the requirement for and the amount of any Bond and/or any limitations on the powers of the Executor or Administrator. Once you are appointed and the Court issues an Order for Probate you will be legally responsible and will also be liable for the proper management of the Estate which will include tasks such as marshalling the decedent’s assets, payment of funeral expenses, payment for expenses of last illness, payment and/or rejection of any creditor’s claims, payment of administration expenses, payment for any taxes owed by the decedent and any other matter which arises and concerns the decedent or the Estate.

If there are challenges to the Will or the Decedent’s capacity to execute the Will (Cal Prob Code § 811) an evidentiary hearing and/or trial will be needed to determine the disputed matters. (Cal Prob Code § 8252) Probate litigation is similar to a civil litigation matter in that both parties will be given the opportunity to conduct discovery and/or file any preliminary motions, the main difference is that probate litigation is decided by a judge rather than a jury.  (Cal Prob Code § 825)

Have Questions On Probate Administration in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Do I need a Federal Tax Identification Number for my Revocable (Living) Trust or Irrevocable Trust?

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Federal Tax Identification Number for my Revocable (Living) Trust or Irrevocable Trust?

Clients often ask whether they need a Federal Tax Identification Number (also known as an EIN) for their Revocable  or Irrevocable Trust.  Typically, this request is made after the beneficiaries or Trustee has been requested to provide a copy of the Trust or the Federal Tax Identification Number to third parties such as banks, lenders or creditors.

Generally speaking, a Federal Tax Identification Number is not needed for a Revocable (Living) Trust while the grantor is still living.  Of course, there are exceptions to this general rule for certain Revocable Grantor Trusts if certain conditions exist (Grantor Trusts and the requirements therefor are excluded from this discussion).  After the Grantor’s passing, if a Revocable Trust becomes Irrevocable as specified within the Trust, a Federal Tax Identification Number will be required and the Trust will now be considered a separate tax entity for federal tax purposes.  During the period of time in which the trust is Revocable the Grantor’s Social Security number will be used for federal tax purposes relating to the income of the Trust.  Typically, the Revocable Trust will also need to open bank accounts in the name of the Revocable Trust and the Grantor’s Social Security Number will also be used to open those accounts.  During the life of the Grantor any income earned by or associated with the assets of the Revocable Trust including the bank account(s) held in the name of the Revocable Trust are claimed on the Grantor’s individual federal income tax return.  A Revocable (Living) Trust will not need to file a separate federal income tax return in most situations during the lifetime of the Grantor.

After a grantor passes away, if the Revocable Trust becomes Irrevocable by operation of law, then the Trustee will need to apply to the IRS for a Federal Tax Identification Number for the Trust, which will be different from the Grantor’s Social Security Number which was previously used.  The Trustee will obtain the Irrevocable Trust’s new Tax Identification Number directly from the IRS by using IRS Form SS-4.  The reason that a separate Federal Tax Identification Number is not needed while the Grantor is living is because the Revocable Trust is just an extension of the individual Grantor and is subject to revocation or amendment, essentially for tax purposes, the income still belongs to the Grantor.  However, when the Grantor passes, the Revocable Trust becomes Irrevocable and is treated as a separate entity for federal tax purposes.  The Irrevocable Trust must then file a separate income tax return using the Tax Identification Number provided by the IRS.

Once the new Federal Tax Identification Number is obtained by the Trustee, that number must replace the Grantor’s Social Security number on all assets and/or accounts titled in the name of the Trust.  In some instances, the financial institution(s) will require that a new account in the name of the Irrevocable Trust be set up using the new Tax Identification Number.  The assets in the old account are then transferred into the new account.  Less frequently, the financial institution may simply allow the existing account to remain open but will change Federal Tax Identification Number on the accounts in place of the Grantor’s Social Security number.

Have Questions On Trusts in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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California Real Estate and Trust

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Options to Consider When Designating Title to Real Estate

Title to California real estate can be held in several diverse ways and depending upon your situation a proper designation of title can be a financially lucrative decision which will affect your heirs. The following options are available means to hold title to real estate and should be considered in your estate plan.

Revocable Trust Holds Title

The best option to hold title to real estate is usually to place the real estate into a revocable trust which will hold title to the real estate rather than any specific individual or individuals. The benefit of placing real estate in a trust and designating the trust as the owner of the property are first and foremost that the real estate will not need to be distributed upon death through the probate process.  Probate fees on real estate transferred through probate will be based upon a percentage of the fair market value of the real estate. For example, probate fees in California are 4% of the first $100,000 of the gross value of the probate estate, 3% of the next $100,000 and 2% of the next $800,000. If you own a home in your name that is worth $1,000,000 the probate fees would be $23,000 regardless of the equity in the home. Furthermore, if you become incapacitated prior to your death and placed under a conservatorship there will be extensive conservatorship fees related to management of your real estate. After the grantor’s death the trust will become irrevocable and once the irrevocable trust holds title and distributes real estate the beneficiaries will receive a step up in basis under 26 U.S. Code § 1014.

Joint Tenancy

Another option for holding title to property is the Joint Tenancy which specifies two individuals as owning equal and surviving interests in the real estate. A joint tenancy avoids probate but will not avoid a conservatorship if you become incapacitated. Additionally, a transfer on death by way of a title held in Joint Tenancy does not provide the survivor with a step up in basis for tax purposes on the portion of property that was held by that individual only a step up in basis for the decedent’s transferred share of interest. Further, a title held in Joint Tenancy is susceptible to creditor’s claims and debts of the parties while living or upon death.

Community Property

A community property asset automatically passes upon the death of the first spouse to the surviving spouse and receives a step up in basis but upon death of the surviving spouse the property will need to go through probate. A petition will need to be filed to transfer ½ of the title to the surviving spouse.

Community Property with Right of Survivorship

Basically, this is the same as title held in community property except that the decedent’s ½ half interest transfers immediately upon death to the surviving spouse without the need to file a petition to transfer title. When meeting with our attorneys to discuss your estate planning goals a discussion of title options for California real estate will most likely be a major area of focus and consideration.

Have Questions On Real Estate in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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